1. ' Judgment debtors have filed an application under Rule L76 of Sindh Chief Court Rules being C.M.A.
2. No,1056 of 2001 wherein it has been ,prayed that as the National Insurance Corporation was the Insurance Company which had insured the vehicles of the judgment debtor No,1, as such they are liable to pay the decretal amount. Since the said application is not fixed today, by consent the application in taken up and heard.
2. Major (Retd.) Abdul Rauf, Advocate has stated at the bar that the application under Rule 176 SCCR has been moved on the basis of and under his right created in consequence of the judgment delivered in the present in which it has been stated:- ' Should the defendants No,1 and'2 wish to claim Indemnity from the defendant No,3 under a septet contract of insurance they could file an application under rule 176 of Sindh Chief Court Rules, which proposition the learned counsel for defendants Nos.1 and 2 accepts...."
3. ' According to him, therefore, this application could be moved in the present Execution Application ,and this Court would have the authority, therefore, to pass an order directing the insurance company to make the payment of the decretal amount. According to him they have already given the premium by insuring the vehicles in question and other vehicles belonging to NLC, in the sum of Rs,33,423,349.00.
3. A perusal of the said judgment passed by a single Judge categorically states.
4. "...Consequently, the suit is disposed of against the defendant No,3 as well."
5. ' In suit the plaintiffs had prayed for a judgment and decree against the defendants Nos. 1, 2 and 3 jointly and or severally. The judgment, however, as is evident, has not decreed the suit against the Defendant No,3, the Insurance Company, namely National Insurance Corporation. The decree also categorically states, "...Be that as it may, insofar as this suit is concerned on the basis of admission by defendants Nos. 1 and 2, who are primarily liable for this claim in this unit, this suit is decreed against the defendants Nos. 1 and 2 as prayed..."
6. ' Ex facie the decree is only against the defendants Nos. 1 and 2 and that no doubt leave has been given to the said defendants Nos. 1 and 2 to proceed against the insurance company but the executing Court shall have no authority or jurisdiction to pass an order directing the defendant No,3 to make the payments. It is a well-settled principle of law that is not open to the executing Court to go behind a decree or re-determine the liabilities of the parties. I am supported for this by the judgment in the case of Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others (1994 SCM R 22). It is argued by Mr. Abdul Rauf that in the event the decree is coram non judice, the order shall be void and not executable. It is further stated by Mr. Abdul Rauf that the judgment in all the 16 suits were passed and that the judgment was passed jointly and/or severally and not as shown in the present judgment.
4. Presently, the executing Court is sitting only to execute an existing decree and if any error is on the face of it or otherwise if the order was void as passed without jurisdiction appropriate remedies were available to the said defendants to have the judgment modified. Admittedly, no application for rectification or reviewing the judgment was made. Admittedly, no appeal has been filed against the said judgment or decree. It is the case of Mr. Abdul Rauf that as the order was coram non judice, he was not bound to file any appeal and the executing Court itself can ignore the said order.
7. He states that as the judgment was passed coram non judice, it is upon the Court. To determine and refuse to execute the decree.
5. Mr. Abdul Rauf has also referred to the case Mst. Sakina and 3 others v. Messrs. National Logistic Cell and 2 others 1995 M LD 633 in which the decree that was passed was against the defendants jointly and or severally. The question was taken up in Execution No,44 of 1994 a copy of order passed therein has been produced in Court by Mr. Abdul Rauf and states that in view of this order a similar order is liable to be passed. Mr. Abdul Rauf refers to the case of Multiline Associates v.
8. Ardeshir Cowasjee and others (1995 SCM R 362) in Which it has been held that a judgment of an equal Bench on the same point is binding upon the second Bench and if ,a contrary view is to be taken, it is to be done by a larger Bench. The said case was in reference to petitions in which the order was passed by a Division Bench and it was held that the order of a Division Bench is liable to be followed by another Division Bench of the same Court. Though this case may be distinguishable in the present case but even if it is taken to be binding and that an order of a single Judge of the same Court be treated to be binding on the other single Judge, the order in Execution No,44 of 1994 in fact does not support the contention of Mr. Abdul Rauf. The relevant portion that has been read out by Mr. Abdul Rauf is reproduced as under :- "6. At the hearing there was no contest with regard to the point that no appeal from the judgment and decree was preferred by and' of the parties with the admitted pogition in law that the judgment and decree has attained finality. The case convassed by J/D No, 3 at the bar appears to be that the liability of Insurance Company is confined to the payment of Rs,20,000 only in terms of section 95(2)(a) of the Motor Vehicles Act.
9. 1939. From the record it appears that such plea was not raised before the trial Court and if raised it was not accepted by the trial Court who proceeded to pass the decree against all the J/Ds jointly and severally. It is well-settled that executing Court is not entitled to go behind or predetermine the disputed question of fact and law as held by the apex Court in Mst. Naseem Akhtar v. Shalimar General Insurance Company Ltd. (1994 SCM R 22). In this view of the matter I am inclined to allow both the applications made by D/H and dismiss the application for refund of the amount. With the credit of the balance amount by the HBL, the decree shall stand satisfied. This disposes of the applications as well as the statements filed by the parties counsel."
10. ' In this case, as referred to above, the execution was to execute .a decree passed in the case of Mst. Sakina and 3 others v. Messrs. National Logistic Cell and 2 others (1995 M LD 633) in which the judgment passed was against the defendants jointly and/ or severally. What the learned Judge has said in the order passed on 12-4-1999 afore-referred is, "It is well-settled that the executing Court is not entitled to go behind or re-determine the disputed question of fact and law."
11. ' In that case, the determined question was that the insurance company was made liable as jointly and severally with the other defendants. In this case, liowever, the decree has not been passed against the insurance company. The argument of Mr. Abdul Rauf is that there has been an omission in all the 16 cases and that the said omission has to be taken care of or rectified by the executing Court. If that view was to be taken, it would seem that the executing Court is going behind the decree which, in view of the above discussion, cannot be allowed. The judgment debtors are free to move 'appropriate proceedings against the insurance company, but in the present case such an application is not maintainable C.M.A. No,1056 of 2001 therefore, is dismissed.
6. The hearing of Main Execution Application is taken up. Mr. Abdul Rauf on behalf of the judgment debtors has argued that the decree passed by this Court is coram judice on the ground that the judgment debtor No, 1 is a part of Pakistan Army and the judgment debtor No, 2 is subject to the Army Act, 1952. In view of the above, it is the case of Mr. Abdul Rauf that the judgment debtors cannot be made liable under this execution. He refers to the case of Rasheed Ahmad v. The State (PLD 1972 S.C. 271) and argues, that the question of jurisdiction can be raised at any stage. There is no cavil this proposition. According to him, in an unreported case of Muhammad Aslam v. In charge National Logistic Cell and others (C.P. No,87 of 1998), the entire law has been placed and discussed and it has been held that the individuals are bound by the Army Act. He refers to the following:- "The plain reading of the above provisions of law clearly shows that the present petition before this forum is 'coram non judice."
12. ' In the case of Force Commander, Airport Security Force Karachi and others v. Haji Muhammad Rashid and another (1996 SCM R 1614), it was observed by the apex Court at page 1629 as under:- "it may be stated that subsection (1) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect In respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of person employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of person subject to the Army Act under clause (c) of subsection (1) of section 2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in . Respect of that force any may suspend the operation of any other enactment for the time being applicable to that force."
13. ' In the case of Dr. Aon Muhammad Khan v. Lt. Gen. (Retd.) Saeed Qadir and others (PLD 1987 S.C.
14. 490), it was observed at Page 493 as under :- (xiiii) 1978-85. Chief Executive and then, from 1981 onward, Chairman, National Logistic Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G.The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23-71978. By 6-8-1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the reorganization of Karachi Port so as to clear 2 million tons of wheat through this period in between October, 1978 and April 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organized the Karachi Port, builtand rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oilfields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities, reorganized the Lahore Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways.
15. ' Again in the same citation at 500, the word "logistics" has been defined as under:- "The word 'logistics' according to the Chambers Twentieth Century Dictionary means "the art 'of movement and supply of troops". This necessarily .Involved the management, operation and control of mechanically propelled vehicle. Therefore, logistics apparently is an allied field with the automobile engineering."
16. ' In an unreported C.P. No,2502 of 1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and it was observed that the entire setup of National Logistic Cell (NLC) is controlled by Army Officers. The Establishment is neither commercial nor industrial. The civil manpower working in National Logistic Cell (NLC) is incidentally connected with the Armed Forces.
17. ' In the case of Brigade Commander Headquarters Field Command, NLC, Karachi v. The State (1996 M LD 469), it was observed that the trial of the Army Personnel could only be held by the Military Court.
18. ' In the case' of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632), it was observed that under Article 199(3), the jurisdiction of High Court is barred and it cannot superintend the affairs of Armed Forces.
19. ' In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others (PLD 1999 SC 504), it was observed that civil offences committed by civilians having nexus with the Armed Forces are triable by the Military Courts.
20. ' In the case of Muhammad Mushtaq v.. -Federation of Pakistan (1994 SCM R 2286), it was observed that under Article 199 for grant of relief under sub article (1) thereof the relief regarding fundamental rights' is included in Sub-Article (1) is clearly barred under Article 199(3) with reference to subarticle (1) thereof, therefore, High Court has no jurisdiction in such matters.
21. ' The decision of Apex Court in case of Federation of Pakistan and 2 others v. Khurshid Ahmad and another (1999 SCM R 664) relied upon by the learned counsel for the petitioner is of no avail to the petitioner as it also supports the contention of the respondents.
22. ' The upshot of the above discussion is that the petition is not maintainable and is misconceived.
23. Consequently, it stands dismissed along with listed application, with no order as to costs. However, the petitioner may exhaust his remedy before the proper forum provided under law."
24. ' It is the case of Mr. Abdul Rauf, therefore, that the judgment debtor No,1 is also not liable. In an unreported case of Raza -Enterprises v. Government of Sindh (Suit No, 1201 of 1998), a similar question had been raised by Major (Retd.) Abdul Rauf, Advocate, and similar arguments were advanced by him. Whilst distinguishing the above judgment and all that is mentioned-therein, it was held that in fact the National Logistics Cell is not a part of the Pakistan Army and not controlled by them. It was further held that the NLC works for profit and gains and is therefore, a body corporate. Otherwise also, as is evident in the present case and arguments that have been led that the National Logistics Cell has insured its vehicles. This categorically shows that the NLC is capable of entering into contractual obligations in their own name. An application under Order VII, Rule 11, C.P.C. Was also filed in which all the above objections were taken. After hearing, the J.Ds , withdrew the said application and abandoned the plea. The case, therefore, of Mr. Abdul Rauf as regards in the present case is not maintainable. It has already been held that the J.Ds are not a part of the Pakistan Army wherefore the question of applicability of Pakistan Army Act, 1952 which may bar the jurisdiction cannot ,be taken into account. The judgment passed earlier in suit has not been appealed against. It is the case of the judgment debtors that the judgment being coram non judice is not liable to be executed. In the case of Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others 1999.CLC 2032), it has been held that this Court has jurisdiction to proceed in the matter. The relevant portions, are reproduced as under:- " The second ground is that this Court has no jurisdiction in view of the rule laid down by the Honourable Supreme Court in the case of Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCM R 1614. During the course of hearing, learned counsel for the defendant No, 1 referred further cases in support of his contention that the jurisdiction of this Court is barred. Reliance was placed on Mrs.Shahida Zaheer Abbasi and 4 others v. President of Pakistan and 6 others (PLD 1996 SC .632), Abdul Ghaffar Lakhani v. Federal Government of Pakistan and others (PLD 1986 Kar. 525), Brigade Commander Headquarters Field Command N.L.C. Karachi v. The State 1996 M LD 469 and the case of Muhammad Nawaz Baloch v.
25. President of Pakistan and 4 others 1999 M LD 359.
26. ' In the case of Mrs. Shahida Zaheer Abbasi (supra), again the matter was considered in reference to the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, 1973. While following the rule laid down in the case of Brigd. (Retd). F.B.Ali v. The State (PLD 1975 SC 506) it was held .That the bar contained in Article 199(3) of the Constitution on the powers of High Court for exercising writ jurisdiction is not absolute in nature and that it could be exercised in the cases, namely,' where the impugned action is male fide or without jurisdiction or coram non judice. Again, in that case, section 9 of the Code of Civil Procedure, 1908 in reference to Act, 1855 was not considered. Therefore, the rule laid down in the case of Mrs. Shahida Zaheer Abbasi is of no held to Mr. Abdul Rauf. No provision of any statute or enactment or any judicial precedent was cited at bar which may indicate that a civil Court has no jurisdiction to entertain a claim under the Fatal Accidents Act, 1855 against an Army Organisation. In the case of Abdul Ghaffar Lakhani (supra), one of the question involved was in reference to the Constitutional jurisdiction to be exercised by the High Court under Article 199 of the Constitution, 1973; the rule laid down in the case of F.B. Ali was reiterated. The case of Muhammad Nawaz Baloch also refers to the jurisdiction of High Court under Article 199. In the instant case, it is yet to be established by the defendant No, 2 that the Tribunal constituted for his trial was constituted under some special law barring jurisdiction of the ordinary Civil Court and that such Tribunal was lawfully constituted and the trial conducted .Was concluded in a lawful manner exonerated the said defendant from the allegations. Only under such circumstances ouster of jurisdiction is completed. No material was placed to show that the jurisdiction of this Court is ousted in the aforesaid manner. I am fortified in my view by the rule -laid down by the Honourable Supreme Court in the case Zafarul Ahsan v. Republic Pakistan (PLD 1960 SC 113). Section 9 of the C.P.C., indeed, bars a suit which is even impliedly barred. There is no element of impliedness in this case. In the case of Zafarul Ahsan (supra) the ' appellant was retired from service for misconduct by the President under sub clause (b) of clause (5) to Article 6 of the Laws (Continuance in Force) Order, 1958 against which the appellant moved High Court of West Pakistan through writ petition against the President's order which was dismissed on the ground that the Court had no jurisdiction to consider the merits of the case. The appeal was dismissed with no order as to cost but following observation was made by the Full Bench of Honourable Supreme Court while defmding as to how the jurisdiction of Court is ousted: -- ".... If a statute provides that an order made by an authority action under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the' High Court, for a Court of law.
27. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this subcontinent, be treated as an order under the statute..."
28. ' The objection to the maintainability of these suits were raised for the first time in these proceedings by the learned counsel appearing for the National Logistic Cell. In previous suits which were decreed against the same defendant and wherein the same counsel was appearing, such objections were raised. Therefore, I have dealt in detail with the respective submission of both the learned counsel. Mr. Nasir Maqsood has drawn my attention to the case Rukhsana Parveen Nazir v.
29. National Logistic Cell through Commander and 2 others 1995 M LD 633 and Mai Nooran v. National Logistic Cell, Ministry of Defence Government of Pakistan through its Commander and 2 others 1995 CLC 1969. In all the said .Three cases, judgments/decrees were passed against one of the same defendant, now, the defendant No, 1 in the present suits. I am told that the appeals filed against these reported cases were also rejected by the Division Benches of this Court . Even in the case Syed Ghaffar Hussaain and 3 others v. The. Commander (Commanding Officer Headquarters National Logistic Cell, Karachi and 3 others 1994 M LD; 2010, the Commander/respondent himself appeared but he did .Not raise any objection to maintainability of that suit..."
30. 7-A. In a case being Execution No, 153 of 2000 filed by the same Gul Muhammad Mir Bahar being an execution of the judgment of Gul Muhammad Mir Bahar v. National. Logistic Cell and 2 others (1999 CLC 2032) referred hereinabove it has been ordered, 44 .. In this view of the matter execution application is allowed and it is ordered that the assets of the judgment debtor as mentioned in the schedule of the properties annexed with this execution application be attached by the Nazir of this Court and thereafter proceedings for sale of the said articles be carried out. The sale proceeds be deposited in Court and same be used in the first instance for the satisfaction of the decretal amount. Orders accordingly. Nazir may seek assistance of the Law Enforcement Agency if felt necessary under the circumstances."
31. ' In another case being Execution No, 165 of 2000 filed by one Aisha Bibi against NLC, the following order was passed:-- "Judgment and decree was passed on 20-11-1998, execution was filed on 13-1-2000, which apparently was served on the Judgment Debtor No, 1, against whom it is sought to be executed, service was effected on 3-1-2001 but no objection appears to have been filed as till to date. The execution is allowed. Nazir is accordingly directed to attach the property mentioned in the schedule attached to the execution application, on the pointation of the decree holder. Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances."
8. In view of the above, the objections taken by Mr. Abdul Rauf are not well founded. The Execution Application is allowed. I direct the Nazir of this Court to proceed to attach the articles; goods, motor vehicles or other such items as may have been mentioned in the Execution Application for the purposes of satisfaction of the decretal amount. In the event upon attachment the said amount is not paid within 30 days, the Nazir shall proceed to sell the said movable items and deposit the sale proceeds in Court for the purposes of satisfaction of the decretal amount. In the event Of refusal of the refusal of the judgment debtors to allow attachment, the Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances.